BERNARD  J.  OTTEN,  S.  J. 

Professor  of  Theology  in  St.  Louis  University 


ST.  LOUIS,  MO.,  1913 

Published  by  B.  Herder 

17  South  Broadway 

FREIBURG  (BADEN)  I LONDON.  W.  C. 

Germany  I 68,  Great  Russell  Str. 


4 

I M PRIM  I POTEST 

A.  J.  Burro ives , S J. 

Praep.  Prov. 


NIHIL  OBSTAT 
Sti.  Ludovici , die  //.  Apr.  1913. 

F.  G.  Holweck, 

Censor  Librorum. 


I M PRIM  A TUR 

Sti.  Ludovici , die  12.  Apr.  1913. 

f Joannes  J.  G lennon, 
A rch  iepiscopus 

Sti.  Ludovici . 


Copyright , 1913 , 
by 

Joseph  Gummersbach. 


The  National  Evil  of  Divorce. 

By  Bernard  J.  Otten,  S.  J. 

I. 

Mr.  James  Bryce,  in  his  able  work  on  JURISPRUDENCE 
AND  HISTORY,  makes  this  very  apposite  remark : “The  material 

progress  of  the  world,  the  mastery  of  man  over  nature  through 
knowledge  of  her  laws,  the  diffusion  of  knowledge  and  the  oppor- 
tunities of  acquiring  it,  are  themes  which  ceaselessly  employ  the 
tongues  of  speakers  and  the  pens  of  journalists,  while  they  swell 
with  pride  the  heart  of  the  ordinary  citizen.  But  they  are  not  the 
things  upon  which  the  moral  advancement  of  mankind  or  the  hap- 
piness of  individuals  chiefly  turns.  1 They  co-exist,  as  statistics  of 
recent  years  show,  with  an  increase  over  all  or  nearly  all  civilized 
countries,  of  lunacy,  of  suicide  and  of  divorce.” 

Of  these  three  evils,  here  set  down  as  obstacles  to  the  moral 
advancement  of  mankind  and  the  happiness  of  individuals,  divorce 
is  beyond  question  the  most  ruinous.  It  not  only  wrecks  the  lives 
of  the  individuals  who  are  parties  to  the  scandalous  proceedings, 
but  it  threatens  the  very  existence  of  civilized  society  by  the  inev- 
itable destruction  of  family  life,  and  gives  rise  to  a generation  of 
men  and  women  wholly  devoid  of  the  most  essential  virtues  of  good 
citizenship — reverence  for  parents,  love  of  home,  and  respect  for 
authority.  Hence,  although1  the  divorce  problem  has  of  late  years 
been  so  widely  discussed,  it  will  not  be  out  of  place  to  subject  it  to 
further  examination,  at  least  in  so  far  as  it  affects  our  own  country. 

Many  thoughtful  and  observant  men  see  in  our  divorce  system 
the  certain  forerunner  of  social  and  political  ruin.  The  history  of 
Greece  and  Rome  and  other  nations  of  pagan  antiquity,  they  con- 
tend, foreshadows  but  too  plainly  what  will  be  our  ultimate  fate,  if 
present  conditions  are  allowed  to  continue  much  longer  as  they  are. 
Of  old  the  Roman  poet  wrote  of  his  own  degenerate  country : 

“Our  times,  in  sin  prolific,  first 
The  marriage  bed  with  taint  have  cursed, 

And  family  and  home: 

This  the  fountain-head  of  all 
The  sorrows  and  the  ills  that  fall 
On  Romans  and  on  Rome.” 

The  same  our  poets  may  write  of  divorce-ridden  America.  The 
thinking  portion  of  our  people  realized  this  years  ago,  and  have  in 
consequence  bestowed  their  best  efforts  upon  devising  a remedy. 
As  early  as  1881,  there  was  organized  in  New  England  a Divorce 
Reform  League,  which,  in  1885,  became  national  in  name  and  scope. 
In  1891,  six  State  Committees  were  formed  to  prepare  the  way  for 
uniform  divorce  legislation;  and  these  six  were  in  1895  increased  to 
twenty-eight,  holding  their  yearly  conventions  at  which  ways  and 
means  were  discussed  to  arrest  the  divorce  plague.  It  was  even 
suggested  to  amend  the  Constitution  so  as  to  enable  Congress  to 
legislate  in  this  matter  for  the  whole  country,  as  it  already  does 
for  the  District  of  Columbia  and  the  Territories.  Protestant 
Churches,  too,  have  taken  up  the  question  and  considered  the  ad- 

(3) 


-4  — 


visability  of  making  marriage  practically  indissoluble.  Thus, 
among  others,  the  Bishops  of  the  Episcopal  Church,  when  con- 
vened some  years  ago  in  the  Pan-American  Conference,  seriously 
discussed  the  proposition  of  forbidding  divorce  altogether  in  their 
communion,  although,  as  might  have  been  expected,  there  was  a 
strong  opposition  on  the  part  of  some,  and  no  final  agreement  was 
reached. 

Legislation  has  also  been  brought  to  bear  upon  this  matter. 
Congress  has  radically  changed  the  divorce  laws  of  the  District  of 
Columbia,  retaining  only  one  of  the  four  grounds  for  absolute  di- 
vorce formerly  allowed.  Some  of  the  States  have  prohibited  so- 
licitation of  divorce  business  by  any  form  of  advertising ; others 
have  lengthened  the  term  of  residence  in  the  State  before  applica- 
tion can  be  made  to  the  divorce  courts ; others,  again,  have  extended 
the  time  that  must  elapse  before  divorced  persons  are  allowed  to 
enter  into  a new  marriage  contract.  All  this  is  indicative  of  the 
growing  anxiety  with  which  the  present  condition  of  things  fills 
the  minds  of  persons  to  whose  keeping  the  country’s  best  interests 
have  been  entrusted.  They  begin  to  realize  that  the  time  for  de- 
cisive action  has  come. 

Nor  can  Catholics  stand  aloof  in  the  nation’s  efforts  to  find  a 
solution  of  this  problem.  For  although  Christ’s  authoritative  in- 
junction, “what  God  hath  joined  together,  let  no  man  put  asunder,” 
is  put  forward  by  their  Church  as  a law  that  admits  practically  of 
no  exception,  nevertheless,  as  daily  experience  shows,  there  are 
many  Catholic  men  and  women  who  endeavor  to  throw  off  in  the 
divorce  courts  the  burden  which  they  freely  assumed  before  the 
altar  of  God.  ' In  their  heart  of  hearts  they  may  still  believe  that 
the  State  has  no  power  to  sever  the  marriage  bond,  yet,  blinded 
by  a vitiated  public  opinion,  they  brush  aside  their  conscientious 
scruples  and  shamelessly  urge  the  pretended  privilege  of  American 
citizens  to  be  freed  from  a yoke  that  has  begun  to  gall.  In  many 
of  our  large  cities  this  is  so  common  an  occurrence  that  it  has  even 
ceased  to  elicit  comment.  Hence,  it  is  no  longer,  as  it  used  to  be 
a few  decades  ago,  the  common  interest  we  take  in  our  country’s 
welfare  that  calls  us  to  action  along  these  lines,  but  the  eternal  well- 
being of  those  who  are  under  the  Church’s  immediate  spiritual  guid- 
ance. The  divorce  problem  in  this  country  is  fast  assuming  a 
Catholic  aspect,  and  in  consequence  Catholics  have  a reason  of 
their  own  for  exerting  themselves  to  find  a proper  solution. 

II. 

Most  civil  governments  that  presume  to  pass  divorce  laws 
make  provision  for  two  different  kinds  of  divorces,  limited  and  ab- 
solute. The  former,  or  limited  divorce,  corresponds  to  the  sepa- 
ration from  bed  and  board  as  recognized  by  the  Catholic  Church, 
when  conditions  are  such  that  the  continuance  of  family  life  be- 
comes a moral  impossibility.  Of  this  we  need  not  speak  on  the 
present  occasion;  because  it  has  played  so  insignificant  a part  in 
the  divorce  proceedings  of  this  country,  that  we  may  regard  it  as 
a negligible  quantity.  The  latter,  or  absolute  divorce,  is  defined 


— 5 — 


by  our  legislators  as  “the  disruption,  by  the  act  of  law,  of  the  con- 
jugal tie  made  by  a competent  court  on  due  cause  shown.”  The 
legal  effect  of  this  divorce  is  not  only  to  make  the  parties  to  it  in- 
dependent of  one  another  as  regards  habitation,  property,  and  other 
civil  consequences  of  marriage,  but  to  restore  them  to  the  condi- 
tion of  single  persons,  commonly  with  the  right  to  enter  a new 
marriage  contract.  It  is  this  absolute  divorce  that  has  obtained 
a firm  foothold  in  nearly  every  State  of  the  Union,  and  by  its  ter- 
rible ravages  fills  thinking  men  with  alarm  for  the  safety  of  their 
country.  HenCe  in  the  following  discussion  we  shall  speak  of  di- 
vorce only  in  this  absolute  sense. 

In  Colonial  days,  divorces  were  granted  almost  exclusively  by 
acts  of  the  Colonial  Legislature,  and  as  this  proceeding  was  neces- 
sarily slow,  expensive,  and  public,  divorces  were  few  in  number. 
But  since  the  birth  of  the  Republic,  legislative  divorces  have  fallen 
into  disfavor  and  judicial  sentences  have  supplanted  legislative  acts. 
Moreover,  each  State  now  legislates  for  itself  in  this  matter,  the 
Federal  Government  having  jurisdiction  over  divorces  only  in  the 
District  of  Columbia  and  the  Territories  not  yet  admitted  to  state- 
hood. As  a result,  there  are  at  present  within  the  boundaries  of 
the  United  States  some  half  a hundred  different  codes  of  divorce 
laws.  Besides,  jurisdiction  over  divorce  cases  is  usually  conferred, 
not  on  special  courts,  but  on  the  law-courts,  district,  circuit,  su- 
perior or  inferior,  as  the  case  may  be ; and  as  these  courts  grant  di- 
vorces on  trials  or  hearings,  not  only  in  large  cities,  but  also  at 
each  county  seat,  there  are  nearly  three  thousand  courts  scattered 
over  the  length  and  breadth  of  the  land,  where  with  little  or  no 
formality,  man  may  put  asunder  what  God  hath  joined  together. 

In  consequence  of  this,  Mr.  Bryce’s  scathing  criticism  of  our 
divorce  legislation,  to  the  effect  that  “it  represents  the  saddest  and 
strangest  body  of  legislative  experiments  in  the  sphere  of  family 
law,  which  free,  self-governing  communities  have  ever  tried,”  finds 
its  justification  in  facts  of  almost  daily  occurrence.  In  certain 
parts  of  the  country,  especially  along  the  Pacific  Coast  and  in  the 
Middle  Western  States,  divorce  has  become  almost  as  common  as 
marriage.  Not  rarely  the  number  of  divorce  sentences  granted  on 
a given  day  is  as  great  as  that  of  marriage  licenses  taken  out  on 
the  same  day.  Nay,  sometimes  divorces  are  considerably  in  excess 
of  the  corresponding  marriages.  Thus,  in  St.  Louis,  not  long  ago, 
fifty-four  divorces  were  granted  in  one  day,  whereas  the  marriage 
licenses  taken  out  on  the  same  day  were  but  twenty-eight.  Simi- 
lar stories  may  be  read  in  the  court  records  of  almost  any  large  city 
West  of  the  Mississippi. 

It  is  true,  divorces  are  apt  to  come  in  batches,  depending  as 
they  do  upon  the  leisure  of  the  court,  whilst  marriages  are  more 
evenly  distributed ; yet,  although  this  leaves  hope  that  not  every 
marriage  is  sooner  or  later  broken  up  by  a sentence  of  divorce,  it 
nevertheless  cannot  conceal  the  painful  fact  that  a vast  number  of 
unfortunates,  who  had  pledged  life-long  fidelity  in  the  days  of  their 
youth,  seek  and  find  in  the  divorce  courts  the  separation  which 
death  alone  was  meant  to  effect.  Hence  it  is  not  so  much  the 


— 6 — 


existence  of  divorce  in  our  midst,  but  rather  its  frequency  that  ob- 
trudes itself  upon  our  notice  and  that  has  lately  become  the  cause 
of  the  gravest  apprehension.  Not  that  this  frequency  is  altogether 
new  and  unexpected,  for  ever  since  the  Hon.  Carroll  D.  Wright, 
late  Commissioner  of  Labor,  issued  in  1887  his  official  report  of 
marriages  and  divorces,  has  the  country  been  apprehending  a large 
yearly  increase  of  this  miserable  home-wrecking  business ; still  the 
rate  of  increase  has  been  so  appalling,  that  the  nation  is  now  fairly 
standing  aghast  at  the  terrible  wreckage  piling  up  with  constantly 
gathering  speed. 

According  to  the  report  just  referred  to,  the  total  number  of 
divorces  granted  in  the  United  States  from  1867  to  1887,  during  a 
period,  therefore,  of  twenty  years,  was  328,716.  This  gives  us  a 
yearly  average  of  16,435.  However,  as  the  population  is  increas- 
ing very  fast,  and  divorces  are  increasing  faster  still,  this  is  only 
a fraction  of  our  present  annual  output.  If  we  compare  year 
with  year,  we  find  that  divorces  are  increasing  more  than  twice  as 
fast  as  the  population.  From  the  9,937  divorces  which  were 
granted  in  1867,  the  number  for  each  successive  year  has  steadily 
grown,  until  in  1886  it  was  25,535,  representing  an  increase  of  157 
per  cent  in  twenty  years.  As  the  population  increased  during  that 
same  period  about  60  per  cent,  it  follows  that  divorces  increased 
more  than  two  and  one-half  times  as  fast  as  the  population. 

Since  then  the  disproportion  for  the  two  rates  of  increase  has 
become  even  more  striking.  Thus,  as  shown  in  Census  Report 
issued  in  1910,  during  the  twenty  years  from  1886  to  1906,  there 
were  granted  in  the  United  States  945,625  divorces,  or  nearly  three 
times  as  many  as  had  been  granted  during  the  preceding  twenty 
years.  Nor  is  this  at  all  accounted  for  by  a corresponding  increase 
in  population.  For  whilst  in  the  first  twenty-year  period,  from  1866 
to  1886,  there  were  38  divorces  per  100,000  population,  in  the  second, 
from  1886  to  1906,  there  were  73 ; hence  the  rate  at  which  divorces 
increase  has  practically  doubled  during  the  last  twenty  years. 
Bearing  this  in  mind,  we  need  not  be  surprised  at  the  statement  re- 
cently made  at  a meeting  of  the  New  York  State  Marriage  and  Di- 
vorce Commission,  that  during  the  year  just  ended,  1912,  “there 
were  granted  in  this  country  over  100,000  divorces.”  Nor  at  the 
other  statement,  made  on  the  same  occasion,  that  “in  the  last  forty 
years  3,700,000  adults'  were  separated  by  divorce  in  this  country, 
and  more  than  5,000,000  persons  were  affected  by  these  cases.” 

These  figures,  then,  represent  the  ghastly  array  of  matrimonial 
failures  recorded  in  the  last  forty  years.  Practically  no  civilized 
country  on  earth  can  show  anything  like  it.  Canada,  our  next- 
door  neighbor,  had  in  1904  only  19  divorces,  and  the  total  number 
of  divorces  granted  since  1867  was  but  356.  Some  European  coun- 
tries have,  indeed,  made  greater  progress  in  the  home-wrecking 
business ; yet  all  things  considered,  they  are  no  match  for  us.  Tak- 
ing the  average  of  per  100,000  population  for  1900  and  1901,  and 
applying  this  to  the  countries  in  which  divorce  is  most  prevalent, 
we  find  the  following:  Netherlands  10;  Belgium  11 ; Sweden  13; 

Prussia  15 ; Denmark  17 ; Norway  20;  France  23 ; Saxony  29;  Switz- 


— 7 — 


erland  32 ; United  States  73.  Hence,  with  us  divorce  is  more  than 
twice  as  frequent  as  it  is  anywhere  in  Europe.  In  fact,  the  only 
country,  at  all  civilized,  where  conditions  are  worse  than  they  are 
in  our  own,  is  Japan,  which  has  215  divorces  per  100,000  popula- 
tion. It  is  only,  therefore,  among  pagan  nations  that  we  can  hold 
up  our  heads  without  shame. 

III. 

Now  what  is  the  social  and  moral  aspect  of  these  conditions 
prevailing  through  the  length  and  breadth  of  our  fair  country?  It 
is  disheartening  in  the  extreme.  With  this  sword  of  Damocles 
hanging  over  every  hearthstone,  domestic  virtue  is  fast  disappear- 
ing from  the  home  circle.  Mutual  love  and  trust  and  generous 
forbearance  must  necessarily  give  way  before  coldness,  suspicion, 
and  selfish  independence.  What  trustful  surrender  can  there  be 
on  the  part  of  the  wife,  when  even  from  the  day  of  her  marriage  she 
must  reckon  with  the  possibility  of  being  discarded  by  her  husband 
for  some  one  who  happens  to  appeal  more  strongly  to  the  crav- 
ings of  his  animal  nature?  What  motive  is  there  on  the  part  of 
the  husband  to  round  off  the  angularities  of  his  character,  when 
persistence  in  them  offers  him  the  means  to  free  himself  from  the 
yoke  that  begins  to  gall?  As  the  recognized  necessity  of  spending 
their  lives  in  one  another’s  company  is  the  strongest  of  motives 
with  both  husband  and  wife  to  live  up  to  the  best  that  is  in  them, 
so  the  well-founded  hope  of  deliverance  from  a yoke  that  has  be- 
come distasteful  is  an  ever  present  incentive  to  accentuate  faults 
of  character  to  such  a degree  that  family  life  becomes  an  intolerable 
burden.  What  room  is  there,  under  such  conditions,  for  those 
many  domestic  virtues  that  make  each  true  home  “the  dearest, 
sweetest  spot  on  earth”? 

Similarly,  whilst  divorce  is  thus  within  easy  reach,  there  is  an 
end  of  all  social  virtues,  and  even  of  the  common  decencies  of  so- 
ciety. Love  intrigues  of  married  men  and  women  have  long  since 
ceased  to  inspire  that  horror  with  which  the  Christian  world  had 
been  taught  to  look  upon  them  by  the  bearers  of  Christ’s  message 
of  salvation.  They  still  remain,  if  you  will,  a sort  of  contraband 
diversion,  that  must  be  indulged  in  more  of  less  by  stealth,  but  they 
are  no  longer  treated  as  a matter  that  need  seriously  trouble  the 
conscience  of  our  divorce-ridden  society.  All  such  irregularities 
are  set  down  as  the  natural  manifestations  of  soul-affinities,  the 
untimely  discovery  of  which  one  may  indeed  regret  but  is  hardly 
called  upon  to  condemn.  As  a necessary  consequence,  these  love 
intrigues  are  becoming  more  frequent  every  day,  and  by  their  in- 
creasing frequency  are  fast  bringing  it  about  that  social  morality 
is  little  more  than  a name. 

Nor  does  this  wretched  divorce  business  present  a less  dis- 
heartening aspect  when  we  view  it  precisly  as  it  is,  the  work  of  the 
State.  For  not  only  does  the  State,  by  an  act  of  the  law,  destroy 
the  homes  that  were  meant  to  be  so  many  sources  of  the  nation’s 
strength,  not  only  does  it  encourage  domestic  dissensions  and  con- 
jugal infidelity  by  setting  upon  them  the  premium  of  deliverance 


— 8 — 


from  uncongenial  surroundings;  but,  by  professing  to  restore  hus- 
band and  wife  to  the  condition  of  single  persons,  it  authorizes  them 
in  the  most  solemn  manner  to  enter  into  and  spend  their  lives  in  a 
state  of  public  concubinage.  For  say  what  we  will,  though  the 
State  declares  the  first  marriage  dissolved,  the  bonds  which  made 
the  contracting  parties  two  in  one  flesh  shall  not  be  disrupted  till 
grim  death  claim  one  of  them  as  his  own.  The  law,  indeed,  says 
that  the  conjugal  tie  is  disrupted  by  the  action  of  the  court,  but  the 
word  of  the  law  has  no  force  except  it  be  approved  by  the  Supreme 
Lawgiver,  and  the  Supreme  Lawgiver  declares  in  unmistakable 
terms  that  man  may  not  put  asunder  what  God  hath  joined  to- 
gether. 

This  incompetency  of  the  State  to  sever  the  marriage  bond,  al- 
though it  is  de  facto  most  clearly  set  forth  in  the  teaching  of 
Christ,  does  ultimately  not  depend  for  its  demonstration  on  the 
views  of  any  particular  religious  denomination.  It  is  a necessary 
inference  from  the  laws  which  nature  enacted  for  the  well-being 
of  the  family,  and  as  such  it  is  antecedent  to  and  independent  of 
the  teaching  of  revelation.  It  is  true,  indeed,  that  the  Author  of 
the  family  could  have  removed  this  incompetency  by  a positive 
communication  of  the  requisite  powers  to  the  State,  but  such  com- 
munication is  neither  invoked  by  the  State  nor  can  it  be  inferred 
from  any  revealed  statement  of  doctrine  as  applicable  to  the  Chris- 
tian Dispensation.  In  fact,  as  far  as  revelation  comes  in  question, 
the  indissolubility  of  the  marriage  bond  is  placed  absolutely  be- 
yond all  State  interference.  For  when  Christ  said,  “What  God 
therefore  hath  joined  together,  let  no  man  put  asunder/’  He  re- 
ferred not  only  to  marriages  between  Catholics,  but  to  those  be- 
tween non-Catholics  as  well,  thereby  revoking  all  concessions  that 
had  been  made  in  the  pre-Christian  Dispensation. 

Hence  if  the  State  deems  itself  competent  to  act  in  this  matter, 
it  must  first  set  aside  Christ’s  own  positive  legislation  and  then 
prove  its  competency  from  provisions  made  in  the  laws  of  nature. 
Yet  this  it  cannot  do.  For  even  if  it  overrides  the  teaching  of 
Christ,  it  will  find  nature’s  laws  too  explicit  to  admit  of  any  inter- 
pretation that  would  justify  State  interference  with  the  perma- 
nency of  family  life.  The  very  fact  that  the  family  is  in  its  origin 
prior  to  the  State  is  an  irrefragable  argument  that  the  essential  con- 
stitution of  the  family  is  independent  of  the  State.  Now  the  very 
essence  of  the  family  consists  in  the  union  of  man  and  woman,  the 
primary  end  of  which  union  is  the  perpetuation  of  the  race.  Hence 
the  contract  from  which  this  union  results  must  be  independent  of 
the  State  as  the  union  itself,  and  consequently  it  must  lie  beyond 
the  jurisdiction  of  the  State  to  make  or  mar.  A higher  power  has 
called  the  family  into  being,  has  made  it  what  it  is,  and  that  power 
alone  can  modify,  change,  or  unmake  it.  No  association  of  men, 
be  that  association  what  it  may,  possesses  the  right  of  interference 
in  this  matter ; simply  because  the  family  is  not  of  its  making. 

Nor  is  there  any  escape  from  this  conclusion  by  having  re- 
course to  the  free  consent  of  the  parties  concerned.  Their  free  y 
consent  to  the  severing  of  the  marriage  bond  is  not  only  illicit 


— 9 — 


but  invalid,  and  therefore  it  cannot  make  the  State  competent  to 
act.  Nature,  in  making  provision  for  the  perpetuation  of  the  race, 
intended  not  only  a social  union  between  man  and  woman,  but 
a social  union  that  should  be  perpetual,  a union  that  should  be 
dissoluble  only  in  death.  It  made  the  family,  therefore,  a perma- 
nent society.  This  is,  first  of  all,  necessarily  inferred  from  the 
need  which  children  have,  both  in  the  physical  and  moral  order, 
of  the  love,  protection,  help,  and  guidance  of  their  parents.  Chil- 
dren cannot  be  reared  as  so  many  heads  of  cattle,  shut  up  in  a 
common  pen  and  looked  after  by  a general  overseer.  They  need 
the  self-sacrificing  love  of  a mother  and  the  firm  guidance  of  a 
father,  even  after  they  have  reached  the  age  of  discretion.  It  is 
only  from  the  sacred  precincts  of  a permanent  home  that  brave 
men  and  virtuous  women  can  come  forth,  who,  because  of  their 
consistent  training  in  domestic  virtue,  are  an  honor  to  human 
society  and  a source  of  strength  to  the  State.  Break  up  the 
home,  and  the  State  itself  is  laid  in  ruin. 

And  even  where  this  primary  end  of  marriage  has  been  at- 
tained, where  children  have  left  the  home  of  their  childhood  and 
established  families  of  their  own,  nature  calls  for  the  continuance 
of  the  same  relations  which,  in  the  days  of  their  youth,  made 
father  and  mother,  two  in  one  flesh.  This  is  readily  inferred  from 
the  secondary  end  of  marriage,  which  finds  its  realization  in  a 
mutual  love  and  help  that  naturally  grows  stronger  with  the  lapse 
of  years.  What  can  be  more  abhorrent  to  man’s  sense  of  the 
eternal  fitness  of  things  than  to  see  gray-haired  men  and  women, 
who  have  for  a quarter  of  a century  labored  and  suffered  and 
prayed  together  in  the  closest  union  established  by  nature,  visit 
the  divorce  courts  with  the  deliberate  purpose  of  having  their 
union  broken  up  when  the  lengthening  shadows  of  life  are  already 
pointing  to  the  dawn  of  eternity’s  day?  The  incongruity  of  it 
alone  loudly  proclaims  nature’s  condemnation  of  so  unholy  a deed. 

Perhaps  it  will  be  objected  that  in  some  marriages  neither 
the  primary  nor  the  secondary  end  is  ever  realized,  in  as  much 
as  they  are  not  blessed  with  offspring  nor  productive  of  a heart 
union  that  makes  them  a social  blessing;  they,  therefore,  may 
well  be  conceived  to  come  within  the  jurisdiction  of  the  State  to 
dissolve.  No,  they  may  not  be  so  conceived.  If  these  marriages 
are  valid  from  the  beginning,  as  is  here  necessarily  assumed,  their 
stability  is  provided  for  by  nature’s  general  law,  and  that  law 
knows  no  exception  save  only  where  the  Author  of  nature  Him- 
self intervenes.  Moreover,  as  far  as  the  want  of  “heart  union” 
is  concerned,  that  depends  on  the  parties’  own  free  action  in 
the  matter;  if  they  have  a good  will,  patiently  bearing  one 
another’s  burden,  as  is  required  by  the  very  nature  of  the  con- 
tract which  they  freely  entered,  they  can  make  their  union  a 
social  blessing  in  spite  of  the  absence  of  a strong  mutual  af- 
fection. In  a few  cases,  indeed,  there  may  develop  an  unbear- 
able antipathy,  but  they  can  be  provided  for  by  a legal  sepa- 
ration that  leaves  the  marriage  bond  intact. 

Hence  in  so  far  as  the  State  defines  absolute  divorce  to  be 


— 10  — 


“the  disruption  by  the  act  of  law,  of  the  conjugal  tie,”  it  is  with- 
out competency  to  grant  such  a divorce.  And  this  view  is  up- 
held by  some  of  our  own  judges,  independently  of  their  religious 
persuasion.  Thus  Mayor  Gay  nor  of  New  York,  whilst  on  the 
bench,  handed  down  the  opinion  that  the  State  does  not  pretend 
to  sever  the  marriage  tie  by  the  action  of  the  divorce  courts, 
but  only  declares  that  the  parties  are  legally  free  to  contract  a 
new  marriage.  Hence,  he  continues,  if  there  exists  an  indissoluble 
bond  which  only  death  can  sever,  that  remains  intact  by  the  action 
of  the  court.  Now  such  an  indissoluble  bond  certainly  exists,  and  in 
consequence  the  second  marriage,  or  any  subsequent  marriage 
whilst  both  parties  to  the  divorce  survive,  is  neither  more  nor  less 
than  legalized  concubinage. 

And  what  does  this  mean  for  the  men  and  women  who,  after 
invoking  the  assistance  of  the  law  in  their  matrimonial  troubles, 
venture  to  attempt  a new  marriage?  Why,  it  means  that  they 
make  an  open  profession  of  a life  of  sin.  And  this  is  especially 
true  of  Catholic  divorcees.  For  whilst  non-Catholics  may  or  may 
not  be  guilty  before  God,  whilst  their  ignorance  of  the  moral 
obligations  which  they  took  upon  themselves  on  the  day  of  their 
marriage  may  or  may  not  be  excusable  before  the  all-seeing  Judge, 
this  cannot  be  said  of  Catholics  who  have  at  all  been  instructed 
in  the  faith  of  their  Baptism.  The  Church  does  not  teach,  as  did 
the  so-called  Reformers  of  the  sixteenth  century,  that  marriage 
is  but  a wordly  thing  and  therefore  subject  to  State  legislation — 
she  enforces,  and  always  has  enforced,  the  clear  and  explicit 
doctrine  of  her  divine  Founder,  that  “whosoever  shall  put  away 
his  wife  and  marry  another,  committeth  adultery  against  her ; 
and  if  the  wife  shall  put  away  her  husband  and  be  married  to 
another,  she  committeth  adultery.” 

This  is  terrible.  We  point  the  finger  of  scorn  at  those  whose 
name  and  tradp  may  not  be  mentioned  in  Christian  society ; yet 
what  difference  is  there  between  them  and  divorcees  who  enter 
into  a new  matrimonial  union  whilst  their  former  partners  are 
still  living?  There  is  a difference,  if  you  will,  but  it  is  only  a 
difference  of  degree.  A few  years  ago,  Congress  endeavored  to 
expel  from  its  halls  one  against  whom  stood  the  charge  of  polyg- 
amy ; yet  every  State  in  the  Union,  with  the  exception  of  South 
Carolina,  legalizes  not  only  polygamy,  but  polyandry  as  well, 
by  empowering  divorcees  to  mary  again  whilst  the  bonds  of  their 
former  marriage  remain  still  undissolved.  And  we  call  ourselves 
a Christian  nation! 


IV. 

Nor  is  this  the  whole  tale  of  woe.  Perhaps  the  saddest  fea- 
ture of  the  divorce  evil  is  the  misery  and  shame  brought  upon  the 
unfortunate  offspring  of  divorcees.  Many  of  them  are  put  away 
into  orphan  asylums,  many  more  find  their  way  into  our  reform 
schools.  In  fact,  recent  investigations  show,  that  from  twenty- 
five  to  fifty  per  cent  of  the  children  in  these  schools  are  there 
because  of  the  separation  of  their  parents.  How  many  others 


-11- 


are  simply  set  adrift  and  finally  join  the  ranks  of  the  ever-grow- 
ing army  of  tramps  and  criminals  no  one  can  tell ; but  indications 
are  not  wanting  that  the  number  is  enormous. 

Statistics  with  regard  to  the  number  of  children  affected  by 
divorce  proceedings  are  somewhat  defective,  yet  from  reliable 
calculations,  based  partly  upon  court  records,  it  appears  that  from 
1867  to  1887  over  435,000  were  deprived  of  one  or  both  parents 
by  the  direct  action  of  the  divorce  courts.  During  the  next  twenty 
years,  from  1886  to  1906,  the  probable  number  is  over  750,000. 
This  gives  us  a grand  total  of  1,185,000  for  forty  years.  Most 
of  them  were  under  ten  years  of  age,  and  so  they  were  made  to 
feel  in  the  very  morning  of  their  life  that  their  temporal  and 
eternal  welfare  was  to  the  State  and  to  their  unnatural  parents 
practically  a matter  of  indifference — were  taught  by  father  and 
mother  and  State  to  follow  the  promptings  of  corrupt  nature 
rather  than  the  dictate  of  right  reason,  to  submit  to  the  tyranny 
of  passion  rather  than  to  the  authority  of  law.  What  a train- 
ing for  future  citizenship ! What  wonder  that  matters  in  this  re- 
spect should  go  from  bad  to  worse!  For  as  their  parents  did,  so 
will  they  do  when  their  time  comes ; and  so  the  divorce  mill 
keeps  on  turning,  ever  turning,  grinding  the  nation  into  dust. 

What  has  just  been  said  about  the  children  of  divorcees  sug- 
gests another  point  that  throws  upon  this  matter  of  divorce  a 
much  more  lurid  light.  Enormous  as  is  the  number  of  children 
affected  by  divorce  proceedings  in  this  country,  yet  if  nature  were 
allowed  to  have  her  course  in  the  marital  relations  of  divorce 
candidates,  it  should  be  at  least  twice  as  great.  Whilst  under 
ordinary  conditions  scarcely  5 per  cent  of  marriages  contracted 
in  this  country  are  unfruitful,  in  the  case  of  divorce  candidates 
unfruitful  marriages  amount  to  nearly  sixty  per  cent.  What  a 
slaughter  of  innocents,  what  an  outrage  of  nature  in  her  most 
sacred  ordinances  this  implies!  Yet  one  could  hardly  expect  it 
to  happen  otherwise.  For  with  many  couples  divorce  is  from 
their  very  marriage  day,  if  not  a foregone  conclusion,  at  least  an 
event  that  is  extremely  probable ; hence  whatever  will  make  the 
obtaining  of  a divorce  more  troublesome  must  be  avoided  or  be 
done  away  with,  and  so  race-suicide  becomes  the  order  of  the 
day. 

V. 

Here  it  may  be  well  to  inquire  into  the  grounds  of  divorce, 
so  as  to  determine  what  bearing  they  have  upon  this  terrible 
state  of  things.  With  the  exception  of  South  Carolina,  which 
does  nqt  grant  absolute  divorce,  all  the  States  of  the  Union  admit 
adultery  as  a statutory  cause  for  which  absolute  divorce  may  be 
granted.  In  New  York  and  the  District  of  Columbia  this  is,  prop- 
erly speaking,  the  only  cause  recognized,  although  divorce  may 
also  be  obtained  for  any  of  the  reasons  which  are  legally  sufficient 
for  annulment  of  the  marriage.  Most  of  the  other  States  grant 
absolute  divofce  for  any  of  the  following  causes : 

1°  Conviction  of  felony. 


— 12  — 


2°  Cruel  and  inhuman  treatment. 

3°  Willful  desertion,  varying  from  one  to  seven  years. 

4°  Habitual  drunkenness. 

5°  Neglect  to  support  the  wife. 

To  this  list  many  of  the  States  add  other  grounds,  such  as 
personal  indignities,  making  life  burdensome ; gross  neglect  of 
duty ; fraudulent  contract ; imprisonment  in  State  prison ; reason- 
able apprehension  of  bodily  harm ; violent  temper,  etc. 

This  is  quite  a formidable  array,  and,  as  a writer  on  the  sub- 
ject well  remarks,  offers  an  escape  from  every  matrimonial  diffi- 
culty. The  wide  range  of  these  grounds  for  divorce  becomes  more 
apparent  if  we  take  a few  concrete  cases  in  which  they  were  in- 
terpreted and  applied  by  the  courts.  For  this  purpose  I have 
selected  from  the  report  of  Hon.  Carroll  D.  Wright  a number  of 
divorces  granted  on  the  plea  of  cruelty  and  inhuman  treatment. 
These  cases  were  gathered,  not  from  newspaper  accounts,  but 
from  the  court  records,  so  that  we  need  not  hesitate  to  accept 
them  as  genuine. 

1°  Divorce  granted  to  wife,  because  she  alleged  that  her  hus- 
band did  not  wash  himself,  thereby  inflicting  on  her  great  mental 
anguish. 

2°  Divorce  granted  to  wife,  because  her  husband  got  drunk 
the  day  after  the  marriage,  causing  wife  to  conceive  violent  dis- 
gust for  him.  Divorce  proceedings  began  one  day  after  the 
marriage. 

3°  Divorce  granted  to  wife,  because  her  husband  used  tobacco, 
thereby  aggravating  her  sick  headaches. 

4°  Divorce  granted  to  wife,  because  her  husband  cut  off  her 
bangs  by  force. 

5°  Divorce  granted  to  wife,  because  her  husband  pinched  her 
nose  till  it  became  red,  thereby  causing  her  mortification  and 
anguish. 

6°  Divorce  granted  to  wife  who  had  married  her  husband 
when  he  seemed  on  the  point  of  death,  but  he  recovered ; hence 
she  asked  for  a divorce  on  the  plea  of  cruelty  and  fraud. 

In  the  cases  just  enumerated  the  wife  was  the  plaintiff ; here 
are  a few  in  which  the  husband  appears  in  that  role. 

1°  Divorce  granted  to  husband,  because  his  wife  frequently 
evinced  towards  him  a violent  temper. 

2°  Divorce  granted  to  husband,  because  his  wife  violently 
upbraided  him,  saying:  “You  are  no  man  at  all,”  thus  causing  him 
mental  sufferings  and  anguish. 

3°  Divorce  granted  to  husband,  because  his  wife  struck  him 
a violent  blow  with  her  bustle. 

These  are  puerile,  frivolous,  ridiculous  reasons ; yet  grave 
judges,  presumably  learned  in  the  law,  found  them  sufficient  to 
justify  the  severing  of  the  most  sacred  bonds.  Justice  must  be 
blind  indeed,  if  it  detects  no  flaw  in  such  proceedings. 

So  much  for  causes  that  depend  to  a considerable  extent  on 
the  interpretation  of  the  court;  let  us  now  take  one  that  admits 
of  little  or  no  interpretation.  Such  a one  is  willful  desertion  for 


— 13  — 


one  or  more  years,  according  to  the  provisions  of  the  law.  If 
the  fact  of  desertion  is  proved,  the  judge  is  forced  by  the  law  to 
issue  a decree  of  divorce,  however  unreasonable  it  may  appear 
to  him  from  his  own  point  of  view.  Now  desertion  is  one  of 
the  grounds  most  frequently  alleged  by  divorce  candidates.  Of 
the  328,716  divorces  granted  during  the  twenty  years  from  1867 
to  1887,  126,676,  or  38.50  per  cent,  were  secured  on  the  plea  of 
desertion.  During  the  next  twenty-year  period  the  percentage 
slightly  increased,  with  the  result  that  out  of  a total  of  945,759 
divorces,  367,502  were  granted  for  willful  desertion. 

The  mischief  caused  by  this  ground,  as  well  as  the  utter 
inability  on  the  part  of  the  judge  to  interfere,  was  years  ago  forci- 
bly pointed  out  by  Judge  Lord  of  Massachusetts,  Having  on  one 
occasion  granted  several  divorces  on  the  plea  of  desertion,  he 
arose  and  said  with  great  emotion : “It  is  shocking  to  contem- 

plate the  state  of  morals  in  this  great  commonwealth  that  is 
here  to  be  observed.  Has  it  come  to  this?  I am  here  to  admin- 
ister the  law  as  it  stands.  The  law  says  that  desertion  for  three 
years  is  cause  for  divorce.  But  I clearly  see  how  it  operates. 
A young  man  and  woman  agree  to  get  married.  They  feel  that 
they  will  live  together  so  long  as  they  find  it  mutually  agree- 
able so  to  do,  and  then  by  a sort  of  tacit  understanding  they  can 
live  separate,  whereupon  one  or  the  other  at  the  end  of  three 
years  brings  in  a libel  for  divorce  on  account  of  desertion.  The 
other  party  makes  no  opposition,  the  divorce  is  granted,  and  then 
they  are  at  liberty  to  do  the  same  thing  over  again.  I say  it  is 
terrible  to  contemplate  such  a state  of  morals  in  this  common- 
wealth !” 

Yes,  it  is  terrible!  It  is  shocking!  But  I wonder  what  the 
same  judge  would  have  said  about  a case  that  came  up  in  Indiana 
a few  years  ago.  A woman  pleaded  for  a decree  of  divorce,  be- 
cause her  husband  had  basely  deceived  her.  “When  I married 
him,”  she  said,  “I  understood  that  I was  only  his  sixth  wife,  but 
since  then  I have  found  out  that  he  had  already  been  married 
nineteen  times  and  had  as  often  been  divorced.  How  can  I en- 
trust my  life  to  such  a man?”  “Oh,  you  needn’t  take  on  so,”  re- 
sponded her  husband  rather  prosaically,  “you  have  been  married 
fourteen  times  yourself,  and  thirteen  of  your  husbands  are  still 
living.”  This,  I suppose,  is  about  as  near  an  approach  to  the 
practice  of  free  love  as  our  modern  society  with  its  veneering  of 
Christianity  will  ever  tolerate ; but  even  this  is  a condition  of 
things  to  all  intents  and  purposes  the  same  as  that  which  dis- 
graced pagan  nations  before  the  advent  of  Christ.  The  saying 
of  Tacitus,  that  Roman  matrons  counted  their  years  by  the  num- 
ber of  husbands  successively  divorced,  may  so.on  become  appli- 
cable to  certain  portions  of  modern  society.  And  this  society 
calls  itself  Christian?  What  a travesty  of  so  sacred  a name! 

Is  it  at  all  to  be  wondered  at,  that  men  and  women,  with  such 
facts  before  their  eyes,  should  lose  all  respect  for  marriage?  Need 
it  be  a matter  of  surprise  that  they  should  come  to  look  upon 
nature’s  most  sacred  rite  as  a sort  of  pleasant  diversion,  which 


— 14  — 


one  may  indulge  in  just  to  break  the  monotony  of  a work-a-day 
life?  That  they  should  regard  it  as  a business  venture  of  minor 
importance?  To  make  an  investment,  to  enter  upon  a business 
career,  requires  thought,  reflection,  calculation;  but  to  take  a wife, 
or  to  accept  a husband,  may  be  left  to  whim  and  fancy,  because 
if  the  venture  prove  a failure  it  may  be  terminated  forthwith, 
leaving  the  interested  parties  free  to  try  the  experiment  over  and 
over  again  till  a match  is  made  that  gives  satisfaction  to  all. 

Hence  it  is  that  marriages  are  contracted  between  parties 
who  have  scarcely  had  time  to  form  a bowing  acquaintance. 
Chance  throws  them  together;  he  admires  her  graceful  form,  she 
his  manly  bearing — it  is  love  at  first  sight,  and  such  love  brooks 
no  delay.  Although  the  maiden  have  but  just  discarded  her  short 
dresses  and  the  youth  be  still  a mere  stripling,  the  “grande  pas- 
sion” stirs  mightily  within  their  bosoms,  sets  at  naught  parental 
objections,  batters  down  judicial  misgivings  as  to  age,  swears 
eternal  fidelity,  and  then  discovers  that  somehow  it  was  all  a mis- 
take, which  for  the  sake  of  private  happiness,  and  the  public  good 
must  be  rectified  in  the  divorce  courts  almost  before  the  traditional 
honeymoon  has  run  its  course. 

This  view  may  appear  extreme,  yet  it  is  borne  out  by  facts 
of  almost  daily  occurrence.  Pick  up  any  of  our  daily  papers,  and 
in  nearly  every  instance  you  will  find  there  an  account  of  some 
runaway  match,  matrimonial  surprise  for  friends  and  parents, 
separation  of  husband  and  wife  but  recently  married,  and  id 
genus  omne.  Statistics,  as  gathered  from  official  records,  show 
that  “more  separations  occurred  in  the  first  and  second  years  of 
married  life  than  in  any  subsequent  years.  At  the  end  of  the  fifth 
year  more  than  one-half  of  the  total  number  of  separations  had 
taken  place.” 

These  ruinous  effects  of  the  application  of  our  divorce  laws 
show,  beyond  the  shadow  of  a doubt,  that  the  laws  themselves 
are  defective ; and  yet,  however,  glaring  that  defectiveness  may  be, 
it  is  safe  to  say  that  the  root  of  the  evil  lies  deeper — it  is  radi- 
cated in  the  underlying  principle  itself.  Neither  our  government, 
nor  any  other  government,  can  devise  a system  of  divorce  laws 
that  will  not  in  the  end  make  for  the  nation’s  undoing.  An  evil 
tree  cannot  bear  good  fruit,  and  because  the  principle  which  un- 
derlies every  divorce  system  is  evil,  hence  the  laws  based  upon 
that  principle  must  necessarily  be  ruinous  in  their  effects.  Every 
government  that  enacts  divorce  laws  takes  it  as  a fundamental 
principle  that  marriage  is  a merely  civil  contract,  and  that,  as 
such,  it  comes  wholly  within  the  jurisdiction  of  civil  authoritv — 
not  only,  that  is  to  say,  as  regards  some  of  its  social  aspects,  but 
in  all  that  appertains  to  its  very  essence.  Now  this  principle  is 
false,  even  if  we  regard  marriage  as  a purely  natural  contract, 
as  has  already  been  pointed  out  on  a preceding  page.  The  gov- 
ernment can  require  the  fulfilment  of  certain  conditions  for  its 
legal  celebration,  it  can  regulate  certain  property  rights  conse- 
quent to  the  marriage  contract,  but  with  the  permanency  of  the 
contract  itself  it  cannot  interfere.  All  such  interference  the  Au- 


— 15  — 


thor  of  lawful  wedlock  has  reserved  to  Himself,  and  if  any  power 
on  earth  ventures  to  ignore  this  reservation,  it  thereby  prepares 
the  way  for  society’s  undoing. 

VI. 

At  this  point  of  our  discussion  the  question  naturally  sug- 
gests itself,  what  can  be  done  in  order  to  avert  the  ruin  with 
which  our  divorce  system  threatens  society?  Dearly  as  we  may 
love  our  country,  we  cannot  shut  our  eyes  to  the  ravages  caused 
by  this  terrible  evil.  Nay,  the  more  intense  our  love  of  country 

is,  the  more  fully  must  we  be  awake  to  the  dangers  that  threaten 

it.  and  the  more  intent  must  we  be  upon  trying  to  devise  some 
remedy.  If  a complete  cure  of  this  social  evil  be  impossible,  there 
must  be  at  least  some  way  of  mitigating  its  virulence,  and  of 
thus  averting  some  of  its  more  serious  consequences. 

It  is  this  many  of  the  nation’s  best  men  are  attempting  all 
the  land  over,  although  without  any  apparent  sign  of  immediate 
success.  The  first  effort  of  these  men,  here  to  be  noticed,  is  their 
strong  advocacy  of  Uniform  Divorce  Legislation.  Reforms  along 
these  lines  have  been  under  discussion  over  a quarter  of  century, 
but  at  the  meeting  of  the  National  Congress  on  Uniform  Divorce 
Laws,  held  at  Philadelphia,  Nov.  13  and  14,  1906,  they  took  a 
more  definite  shape.  A form  of  statute,  embodying  the  principles 
formulated  by  the  congress  on  the  subject  of  annulment  of  mar- 
riage and  divorce,  was  presented  and  adopted.  Furthermore,  as 
the  Federal  Congress  can  apparently  not  deal  with  this  matter, 
efforts  have  been  concentrated  upon  securing  a nation-wide  adop- 
tion of  this  statute  under  state  legislation.  As  a result  of  these 
efforts,  pressure  has  been  brought  to  bear  upon  State  Legisla- 
tures, and  it  seems  not  altogether  improbable  that  some  sort  of 
uniformity  in  divorce  legislation  may  finally  be  secured.  Especially 
as  the  causes  provided  for  in  the  statute  are  now  the  law  in  forty  States 
of  the  Union. 

That  the  adoption  of  this  statute  by  all  the  States  would  have 
a beneficial  effect  is  obvious.  For  it  would  at  least  abate  the 
scandal  of  migratory  divorces,  and  fix  the  status  of  all  divorced 
persons  on  the  same  plane  throughout  the  Union.  But  this  would 
be  practically  all.  Uniform  divorce  legislation  is,  indeed,  much 
to  be  commended ; but  uniformity  alone  will  not  stop  the  divorce 
mills.  This  is  quite  evident  from  the  fact  that  over  90  per  cent 
of  the  divorces  granted  during  the  twenty-year  period,  from  1886 
to  1906,  were  secured  on  the  plea  of  one  or  another  of  the  five 
causes  provided  for  in  the  proposed  statute.  These  causes  are : 
(a)  Adultery;  (b)  Just  imprisonment  for  two  years;  (c)  Ex- 
treme cruelty,  which  renders  cohabitation  unsafe;  (d)  Wilful 
desertion  for  two  years;  (e)  Habitual  drunkenness  for  two  years. 
It  is  true,  indeed,  that  two  of  these  causes,  cruelty  and  drunken- 
ness, are  somewhat  restricted  in  their  operation  by  the  addition 
of  “extreme”  and  “for  two  years,”  but  that  will  make  little  differ- 
ence in  their  practical  use. 

In  other  quarters  it  has  been  suggested  to  diminish  the  statu- 


— 16  — 


tory  grounds  for  divorce,  it  being  expected  that  thereby  divorce 
may  be  diminished  in  proportion.  This  suggestion  has  the  sup- 
port of  many  Protestant  divines,  who  would  allow  absolute  divorce 
only  in  cases  of  adultery  and  malicious  desertion,  which,  they 
contend,  are  grounds  authorized  by  Scripture.  Apparently  such 
a restriction  would  make  for  considerable  improvement.  Divorce 
statistics  of  the  last  forty  years,  when  studied  in  connection  with 
contemporaneous  divorce  legislation,  do  in  many  instances  point 
to  the  conclusion,  that  the  more  numerous  the  grounds  are  for 
which  divorce  may  be  granted,  the  more  rapid  also  is  the  increase 
of  divorce  cases.  Yet,  at  the  same  time,  it  must  also  be  remem- 
bered that  there  is  repeatedly  a phenomenal  increase  of  divorces 
whilst  the  statutory  grounds  remain  the  same.  Hence  there  does 
not  seem  to  be  a necessary  connection  between  the  number  of 
causes  for  which  divorce  may  be  obtained,  and  the  number  of 
divorces  actually  secured  during  any  given  period  of  years. 

And  this  would  likely  be  very  apparent  if  divorce  were  re- 
stricted to  the  two  grounds  here  suggested.  For  whatever  may 
be  said  about  adultery,  facts  show  that  desertion  is  in  great  favor 
with  divorce  candidates,  as  was  pointed  out  above.  Hence  the 
likelihood  would  be  that  all  those  divorces  which  are  now  granted 
for  cruelty,  violent  temper,  non-support,  etc.,  would  thereafter  be 
secured  on  the  plea  of  desertion.  The  wife  would,  indeed,  no 
longer  be  able  to  sue  for  divorce  just  because  her  husband  cut 
off  her  bangs,  nor  the  husband,  because  his  wife  struck  him  with 
her  bustle ; but  both  husband  and  wife  could  still  make  these 
heinous  offenses  the  occasion  of  separation,  and  thus,  after  the 
specified  time  had  elapsed,  obtain  a divorce  on  that  score,  which 
would  serve  their  purpose  almost  as  well  in  the  end. 

Hence,  to  mend  matters  perceptibly,  desertion  must  evidently 
cease  to  be  a sufficient  cause  for  divorce.  This,  however,  is  not 
likely  to  be  brought  about  at  least  in  the  present  state  of  public 
opinion.  For  the  sight  of  a wife  deserted  by  her  husband,  and 
thus,  as  is  often  the  case,  reduced  to  condition  of  complete  help- 
lessness, unless  she  be  allowed  to  marry  again,  appeals  too 
strongly  to  our  American  sense  of  doing  the  square  thing  to  fail 
of  obtaining  relief.  Whatever  particular  States  may  do  in  this 
matter,  it  is  extremely  improbable  that  the  nation  as  a whole  can 
be  induced  to  strike  desertion  from  its  statutes  as  a sufficient 
ground  for  divorce ; and  as  long  as  this  cannot  be  effected,  there 
is  little  hope  for  improvement  from  this  source. 

But  suppose  desertion  were  universally  done  away  with  as 
a sufficient  ground  for  divorce,  what  would  be  the  result?  Would 
the  divorce  evil  practically  cease  to  exist?  Not  that;  although 
considerable  improvement  would  undoubtedly  be  effected.  Ac- 
cording to  government  statistics,  of  the  945,625  divorces  granted 
during  the  twenty-year  period  from  1886  to  1906,  153,759,  or  16.30 
per  cent,  were  secured  on  the  plea  of  adultery.  This  would  give 
us  a yearly  average  of  7,688  divorces,  which  is  certainly  a vast 
improvement  upon  our  present  yearly  average  of  47,281.  But 
this,  it  must  be  borne  in  mind,  is  on  the  supposition  that  no 


-17- 


other  cause  for  divorce  were  recognized  in  any  of  the  States. 
For  if  some  of  the  States  were  to  retain  any  other  grounds,  many 
discontented  couples  would  settle  there  for  the  time  being  and 
thus  secure  divorce  on  easier  terms,  as  the  existence  of  our  West- 
ern Divorce  Colonies  sufficiently  proves. 

Furthermore,  if  adultery  were  universally  recognized  as  the 
sole  sufficient  ground  for  divorce,  it  is  highly  probable  that  divorce 
statistics  would  soon  show  a phenomenal  increase  of  conjugal  in- 
fidelity. And  this,  first  of  all,  because  many  divorces  that  are  now 
obtained  on  the  plea  of  desertion,  non-support,  etc.,  might  have 
been  truthfully  secured  for  adultery.  Most  men  and  women  choose 
the  more  honorable  of  two  available  means,  if  it  will  serve  the  same 
purpose;  hence  under  present  conditions  many  cases  of  conjugal 
infidelity  are  kept  from  the  knowledge  of  the  court,  and  other 
causes  are  substituted.  But  if  adultery  were  the  only  cause  for 
divorce,  it  would  be  urged  by  many  who  now  shrink  from  plead- 
ing it  to  obtain  relief. 

Again,  it  is  not  at  all  unreasonable  to  suppose  that  under  these 
conditions  some  would  go  so  far  as  to  violate  conjugal  fidelity  for 
the  very  purpose  of  obtaining  a divorce.  This  Chancellor  Kent 
called  attention  to  years  ago,  as  a result  of  his  judicial  experience. 
“I  have  had  occasion  td  believe,”  he  said,  “in  the  exercise  of  judi- 
cial cognizance  over  divorce  cases,  that  the  sin  of  adultery  was 
sometimes  committed  on  the  part  of  the  husband  for  the  very  pur- 
pose of  divorce.”  The  same  opinion  was  some  years  past  expressed 
by  a Bishop  of  the  Episcopal  Church  with  regard  to  some  of  his  own 
flock.  Nor  need  we  suppose  that  the  sin  of  adultery  has  been  com- 
mitted in  every  case  where  divorce  is  granted  on  this  plea.  It  is  a 
ground  which  of  its  very  nature,  can  usually  be  proved  only  by  cir- 
cumstantial evidence,  and,  given  a determined  will  on  the  part  of 
the  so-called  innocent  party,  together  with  the  ready  co-operation 
of  a clever  and  unscrupulous  lawyer,  charges  can  be  trumped  up 
that  would  ruin  the  reputation  of  a saint.  Once  in  a while  cases 
of  this  kind  are  brought  to  public  notice,  and  how  many  more  es- 
cape all  publicity  no  one  can  tell. 

Hence  uniform  divorce  legislation  and  restriction  of  divorces 
to  one  or  two  causes,  although  highly  commendable,  alone  will  not 
suffice.  There  is  urgent  need  of  other  reforms  as  well.  And  the 
first  of  these  touches  the  constitution  of  our  divorce  courts.  For 
although  Mr.  Bryce’s  statement,  that  “in  most  States  jurisdiction 
over  divorce  cases  is  vested  in  the  county  courts,  whose  ill-paid 
judges  are  rarely  men  of  professional  eminence,”  is  not  entirely 
correct,  nevertheless  his  scathing  criticism  of  the  incompetency  of 
our  divorce  judges  is  in  too  many  instances  founded  on  obvious 
facts.  To  suppose  that  every  one  of  the  nearly  three  thousand 
judges,  who  decide  divorce  cases  in  the  United  States,  is  compe- 
tent to  deal  with  a matter  of  such  far-reaching  consequences,  is 
more  than  the  political  position  of  many  of  these  judges  warrants. 
There  are,  no  doubt,  well-meaning  men  among  them,  and  able  men 
as  well ; but  many  also  there  are  who  owe  their  position  to  political 
influence  rather  than  to  professional  eminence,  and  who,  like  a cer- 


— 18 


tain  Utah  judge,  are  too  ready  to  perform  a “neighborly  act”  when 
importuned  by  divorce  candidates. 

The  Rev.  H.  Loomis  said  years  ago  of  the  Connecticut  divorce 
courts:  “It  would  be  difficult  to  conceive  qf  anything  called  a 

court,  constituted  with  more  inevitable  tendency  to  dangerous  lax- 
ity of  practice,  than  the  superior  court  extemporized,  during  the 
few  minutes  before  or  after  one  of  its  ordinary  sessions,  into  a court 
of  divorce.”  And  so  it  is  practically  all  over  the  Union.  It  is  not 
only  the  incompetency  of  the  judge,  but  the  press  of  business  as 
well,  that  all  too  frequently  makes  the  rendering  of  divorce  sen- 
tences a judicial  farce. 

What  precise  remedies  should  be  applied  to  this  condition  of 
things,  it  is  perhaps  not  so  easy  to  say ; although,  if  common  sense 
alone  were  consulted,  they  would  seem  obvious  enough.  If  we 
must  have  divorce  courts,  why  not  make  them  divorce  courts  in  the 
full  sense  of  the  term?  Courts,  that  is,  for  this  express  purpose,  in 
which  no  other  cases  are  ever  tried.  This  need  not  necessarily 
mean  an  unreasonable  multiplication  of  courts,  as  half  a dozen  for 
each  State  would  be  amply  sufficient.  Again,  if  under  present  con- 
ditions, the  judges  who  handle  this  delicate  matter  are  often  incom- 
petent, why  not  make  such  provisions  that  only  the  most  capable 
and  discreet  men  in  the  legal  profession  be  eligible  to  the  position? 
This  may  make  it  necessary  that  the  positions  should  be  filled  by 
appointment  and  that  a high  salary  should  be  attached  to  them,  but 
that  would  seem  fully  justified  by  the  need  there  is  of  some  such 
radical  reform.  Whatever  be  the  legal  aspect  of  this,  it  certainly 
commends  itself  to  common  sense. 

Somewhat  similar  reforms  seem  to  be  called  for  in  regard  to 
divorce  proceedings.  When  we  consider  that  at  present  nearly 
90  per  cent  of  divorce  cases  go  by  default,  with  only  one  party 
represented,  we  cannot  help  inferring  that  something  is  “rotten 
in  Denmark.”  Even  if  things  are  not  everywhere  in  so  deplorable 
a condition  as  in  Reno,  for  example,  where  “divorces  are  granted 
on  the  utterly  uncorroborated  testimony  of  one  party  to  the  suit,” 
it  certainly  is  in  most  places  bad  enough  to  call  for  radical  reform. 
Thus  according  to  the  letter  of  the  law  it  is  commonly  required 
that  notice  of  the  impending  action  be  served  on  the  defendant 
who  happens  to  be  absent,  but  in  practice  this  amounts  often  to 
nothing  more  than  publication  in  the  local  newspaper;  or  if  form- 
al notice  is  served  by  the  plaintiff’s  lawyer,  care  is  taken  that  it 
shall  not  reach  the  defendant  in  time  to  stay  proceedings.  Does 
not  this  look  very  much  like  a legalized  form  of  stealing  a person’s 
husband  or  wife  whilst  men  are  asleep? 

To  remedy  this  terrible  condition  of  things  it  is  evidently 
necessary  to  require  personal  service  upon  the  defendant  wherever 
practicable,  and  when  the  defendant  cannot  be  served  personally, 
to  insist  upon  due  notice  being  sent  him,  or  at  least  upon  proper 
publication  if  his  address  cannot  be  ascertained.  Much  good,  in 
this  respect,  would  also  result  from  the  adoption  of  a suggestion 
made  by  the  National  Congress  on  Uniform  Divorce  Laws  in  refer- 
ence to  all  decrees  for  absolute  divorce,  to  the  effect  that  “a  decree 


— 19  — 


nisi  shall  be  entered,  which  shall  become  absolute  after  the  ex- 
piration of  one  year  from  the  entry  thereof,  upon  application  to 
the  court  by  the  plaintiff,  unless  prior  to  that  time  cause  be  shown 
to  the  contrary.” 

Other  suggestions  made  by  the  same  Congress,  that  “in  all 
uncontested  cases,  and  in  any  other  case  where  the  court  may 
deem  it  necessary  or  proper,  a disinterested  attorney  may  be  as- 
signed by  the  court  actively  to  defend  the  case,”  that  “no  decree 
for  annulment  of  marriage,  or  for  divorce,  shall  be  granted  unless 
the  cause  is  shown  by  affirmative  proof  aside  from  any  admis- 
sion on  the  part  of  the  defendant,”  and  that  “no  record  or  evidence 
in  any  case  shall  be  impounded,  or  access  thereto  refused,”  also 
commend  themselves  for  general  adoption  and  would  greatly  im- 
prove the  present  chaotic  conditions  of  our  divorce  proceedings. 

Finally,  to  all  these  proposed  reform  measures  should  be 
added  the  elimination  of  migratory  divorces,  which,  so  long  as  we 
have  no  uniform  divorce  laws,  necessarily  tend  to  counteract  the 
effects  of  restrictive  legislation  in  individual  States.  To  bring 
about  this  elimination,  it  is  necessary  to  make  the  jurisdiction  of 
the  court  over  divorce  cases  depend  on  the  bona  fide  residence 
in  the  State  of  at  least  one  of  the  parties  to  the  suit,  and  this 
bona  fide  residence  should  be  positively  proved  to  have  been  of 
considerable  duration  before  the  commencement  of  the  action. 
At  present  most  States  require  one  year,  some  only  six  months, 
and  a few  two  years  or  at  most  three.  It  has  been  suggested 
that  two  years  would  be  sufficient,  provided  it  can  be  shown  to 
be  bona  fide  and  not  merely  for  the  purpose  of  obtaining  a divorce 
on  a plea  that  is  not  recognized  in  the  home  State. 

VII. 

Besides  these  measures,  which  aim  at  checking  the  divorce 
evil  by  effecting  necessary  reforms  in  our  courts  and  their  pro- 
ceedings, others  might  be  taken  which  would  be  remedial  in  an 
indirect  way.  The  first  one  of  these  is  to  do  away,  as  much  as 
possible,  with  inconsiderate  and  hasty  marriages.  For  this  pur- 
pose it  would  be  very  desirable  to  require  a certain  interval  of 
time  between  the  application  for  a license  and  its  issue  by  the 
court.  The  application  itself  should  be  made  public,  so  as  “to  give 
a chance  for  the  bringing  forward  of  objections.”  This  appears 
all  the  more  reasonable  as  the  marriage  license  was  originally  in- 
tended only  as  a special  dispensation  with  the  banns,  which  have 
in  our  country  practically  fallen  into  desuetude.  If  the  interval 
were  long  enough,  say  from  ten  to  fifteen  days,  many  a rash  mar- 
riage would  thereby  be  prevented. 

This  measure  has  been  strongly  recommended  by  the  National 
Congress  on  Uniform  Divorce  laws,  and  has  subsequently  been 
adopted  by  a number  of  States.  Thus  the  law  of  Massa- 
chusetts on  this  subject,  in  force,  since  January  1,  1912,  is  as  fol- 
lows: “Persons  who  intend  to  be  joined  in  marriage  in  this  Com- 
monwealth shall  not  less  than  five  days  before  their  marriage 
cause  notice  of  their  intention  to  be  entered  in  the  office  of  the 
clerk  or  register  of  the  city  or  town  in  which  they  respectively 


— 20  — 


dwell,  or,  if  they  do  not  dwell  within  the  commonwealth,  in  the 
office  of  the  clerk  or  register  of  the  city  or  town  in  which  they 
propose  to  have  the  marriage  solemnized.”  A similar  law,  pref- 
erably, however,  with  greater  insistence  on  proper  publication, 
should  be  introduced  in  all  the  States. 

Closely  connected  with  this  measure,  and  partly,  at  least,  in- 
tended for  the  same  purpose,  is  the  proposed  abolition  of  so-called 
common  law  marriages,  which  are  usually  defined  as  “a  contract, 
without  any  ceremony,  religious  or  civil,  of  a man  and  woman  to 
take  each  other  as  husband  and  wife,  followed  by  cohabitation 
and  reputation  as  such.”  They  are  at  present  still  recognized  as 
valid  in  nearly  one-half  of  the  States,  although  there  is  every- 
where a growing  tendency  to  have  them  declared  null  and  void. 
That  the  recognition  of  their  validity  enables  minors  to  contract 
marriage  against  the  will  of  their  parents  or  guardians  is  obvious, 
and  therefore,  for  this  reason  as  well  as  for  others,  it  appears 
very  desirable  to  have  them  abolished. 

In  this  connection  attention  might  also  be  called  to  the  pre- 
vailing laxity  in  issuing  licenses  to  persons  not  of  legal  age.  Ac- 
cording to  the  law  it  is  usually  required  that  the  parents  or  guar- 
dians of  the  parties  under  “lawful  age”  give  their  consent,  either 
personally  or  in  writing,  before  license  may  be  issued ; but  this 
provision  of  the  law  is  frequently  evaded  by  the  mere  assertion 
of  the  applicants  that  they  are  of  age.  Such  assertion  may  indeed 
be  contested  by  the  issuant  of  the  license,  and,  if  the  applicants 
have  no  parents  or  guardians  living,  they  may  be  required  to  con- 
firm their  statement  by  affidavit  or  oath;  but  this  is  either  dis- 
pensed with  or  made  ineffective  for  want  of  prosecution  if  it  be 
discovered  that  the  statement  was  false.  Obviously  these  pro- 
visions of  the  law  should  be  fortified  by  a severe  sanction,  and 
then  rigorously  enforced. 

Next  to  these  legal  measures,  intended  primarily  to  prevent 
inconsiderate  and  hasty  marriages,  and  thus  indirectly  to  check 
the  divorce  evil,  much  good  along  the  same  lines  may  also  be 
effected  by  creating  a strong  public  opinion  against  divorce.  As 
experience  teaches  in  a hundred  different  ways,  public  opinion 
against  any  prevailing  social  evil  is  the  most  effective  means  of 
removing  it,  and  the  present  lack  of  such  an  opinion  against 
divorce  has  much  to  do  with  the  activity  of  our  divorce  courts. 
A few  decades  ago,  the  securing  of  a divorce  meant  exclusion 
from  good  society ; today  divorcees  are  admitted  to  the  social 
functions  of  the  most  exclusive  set.  We  have  become  very  tolerant 
in  this  matter,  but  we  have  lost  much  in  true  charity.  To  forgive 
is  indeed  divine,  but  to  encourage  in  evil  doing  is  diabolical ; and 
every  social  support  we  give  to  divorcees  is  an  encouragement 
for  others  to  follow  their  example.  With  vast  numbers  of  these 
unfortunates  it  is  the  7’0.r  popnli,  the  force  of  public  opinion,  that  de- 
cides the  issue. 

It  is  true,  anything  like  a universal  social  interdict  against 
divorcees  must  seem  cruel,  yet  it  is  well  to  bear  in  mind  that 
sometimes  seeming  cruelty  is  real  kindness.  When  we  are  as- 


— 21  — 


sured  that  in  this  fair  country  of  ours  every  year  some  fifty  thou- 
sand homes  are  broken  up  by  the  action  of  our  divorce  courts,  and 
that  at  least  the  same  number  of  children  are  by  an  act  of  the  law 
deprived  of  one  of  their  parents,  there  looms  up  before  us  another 
side  of  the  question  that  puts  the  real  authors  of  all  this  wreck- 
age in  a class  little  different  from  that  of  common  criminals.  We 
pity  the  forlorn  condition  of  orphans ; we  sympathize  with  the 
poor  waifs  who  have  never  experienced  a mother’s  tender  love  or 
a father’s  devoted  care,  but  what  pity,  what  sympathy  can  allevi- 
ate the  cruel  lot  of  those  other  wretched  beings  who  are  made 
orphans  during  the  lifetime  of  their  parents,  and  who  must  sooner 
or  later  come  to  look  upon  the  authors  of  their  existence  as  the 
cause  of  their  ruin?  To  ostracize  their  unnatural  parents  may 
be  cruelty,  but  it  is  a cruelty  that  spells  kindness  for  thousands 
of  little  ones  yet  unborn. 

Marriages  may  at  times  turn  out  to  be  very  unhappy ; in  rare 
instances  there  may  be  sufficient  cause  for  legal  separation : but 

to  set  aside  the  bonds  that  alone  can  enable  the  offspring  of  such 
marriages  to  look  without  a blush  of  shame  into  the  face  of  father 
and  mother,  and  to  set  them  aside,  as  is  so  often  done,  for  little 
or  no  reason,  deserves  nothing  less  than  exclusion  from  Christian 
society.  If  this  exclusion  inflicts  pain  upon  the  delinquents,  as 
needs  it  must,  this  very  pain  will  act  as  warning  to  others  whom 
an  ill-advised  sympathy  with  divorcees  would  have  emboldened 
to  practice  a similar  cruelty  against  their  own  helpless  offspring. 
Were  this  social  interdict  against  divorcees  universally  enforced, 
more  good  would  come  of  it  than  the  most  stringent  divorce  legis- 
lation can  ever  hope  to  effect. 

But  here  the  difficulty  is  to  create  such  a public  opinion.  Our 
people  have  become  so  accustomed  to  seeing  these  tragedies 
enacted  in  their  midst  that  their  moral  sensibilities  in  this  respect 
are  hopelessly  blunted.  Divorce  obtrudes  itself  on  their  notice 
everywhere;  not  only  in  the  courts,  but  in  the  newspapers  and 
magazines  and  books  they  read,  in  the  theaters  they  frequent, 
in  the  houses  of  friends  they  visit.  It  is  presented  to  them  as  a 
national  institution,  almost  as  honorable  as  marriage.  If  our  Press 
and  our  Playhouses  could  be  induced  to  take  a firm  stand  against 
this  terrible  form  of  social  evil,  a gradual  change  of  public  opinion 
might  be  brought  about ; but  unfortunately,  with  a few  laudable 
exceptions,  they  seem  bent  upon  adding  fuel  to  the  flame. 
Marriage  is  spoken  of  and  represented  as  a thing  to  trifle  with, 
and  divorce  is  held  up  to  the  public  gaze  as  the  cure-all  of  domestic 
grievances.  And  so,  instead  of  guiding  their  patrons  to  a higher 
conception  of  the  sacredness  of  family  life,  they  are  sweeping 
away  whatever  vestige  of  respect  for  this  most  sacred  of  nature’s 
institutions  has  come  down  to  us  from  a saner  age.  They  are  as 
hopeless  as  the  public  to  whose  passions  they  pander. 

Hence,  although  considerable  improvement  may  be  effected 
by  a determined  and  conscientious  use  of  the  several  measures 
above  suggested,  anything  like  a thoroughgoing  reform  cannot 
reasonably  be  looked  for  until  in  God’s  own  wise  ways  there  is 


— 22  — 


brought  about  a change  of  men’s  hearts — until  men  be  made  to 
understand  practically  that  the  spirit  must  dominate  over  the  flesh, 
that  the  Creator  must  rule  over  the  creature.  Only  when  religion, 
which  is  now  with  so  many  but  little  more  than  a name,  shall 
again  be  allowed  to  enter  as  a principle  of  action  into  men’s  daily 
lives,  will  marriage  once  more  be  recognized  as  nature’s  most 
sacred  institution.  Then  even  the  most  frivolous  will  see  a mean- 
ing in  that  solemn  scene"  which  is  now  witnessed  almost  ex- 
clusively on  the  occasion  of  Catholic  marriages,  when,  with  clasped 
hands,  bride  and  bridegroom  stand  before  the  altar  of  God,  and, 
in  presence  of  their  future  Judge,  take  one  another  as  husband 
and  wife,  to  have  and  to  hold  from  that  day  forward,  for  better, 
for  worse,  for  richer,  for  poorer,  in  sickness  and  in  health,  till 
death  do  them  part.  This,  as  is  obvious,  means  a return  to  the 
Catholic  view  of  marriage,  and  such  a return  alone  can  completely 
cure  the  national  evil  of  divorce. 


